FEDERAL COURT OF AUSTRALIA

FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE NATURE OF THIS APPEAL

1    The applicant in WAD 54 of 2014 (FMG) appeals from a decision of the National Native Title Tribunal as to whether, as found by the Tribunal, an expedited procedure should not apply in relation to the area governed by two proposed exploration licences (Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 14) (Determination). This appeal was heard together with an appeal by the State of Western Australia in WAD 55 of 2014 in relation to the same determination, but on different grounds. In each instance, although several issues have been raised in these appeals, the primary issue for consideration is the degree and extent to which this expert tribunal is required to expose details of its reasoning process in arriving at what has been described as a ‘predictive assessment’. For reasons that follow, in my view, when considered with an approach which is not overly critical and makes due allowance for the expertise and experience of the Tribunal, the process of reasoning in each of the decisions does withstand scrutiny. The reasons for dismissal follow.

2    These appeals are appeals as of right pursuant to s 169(1) of the Native Title Act 1993 (Cth) (NTA) which provides that a party to an inquiry relating to a right to negotiate application before the Tribunal may appeal to this Court on a question of law from any decision or determination of the Tribunal in that proceeding. The Court’s jurisdiction is to hear and determine the appeal in accordance with s 169 and make orders affirming or setting aside the decision, or remitting the case to be heard and decided again with or without further evidence: s 169(5) and s 169(6) NTA.

STATUTORY CONTEXT

3    It is necessary to say something about the statutory framework governing the Determination. The expression ‘expedited procedure’ referred to in s 237 is not defined in the NTA, but is relevant to the means for validly doing ‘future acts’, an expression which is defined in the NTA at s 233(1) relevantly as follows:

233    Future act

Definition

(1)    Subject to this section, an act is a future act in relation to land or waters if:

(a)    either:

(i)    it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or

(ii)    it is any other act that takes place on or after 1 January 1994; and

(b)    it is not a past act; and

(c)    apart from this Act, either:

(i)    it validly affects native title in relation to the land or waters to any extent; or

(ii)    the following apply:

(A)    it is to any extent invalid; and

(B)    it would be valid to that extent if any native title in relation to the land or waters did not exist; and

(C)    if it were valid to that extent, it would affect the native title.

(Future Act).

4    By s 24OA NTA in subdiv O, a Future Act will be invalid to the extent that it affects native title unless the NTA otherwise provides. Subdivision P sets out the right to negotiate provisions and procedures. The expedited procedure is intended to be a more expeditious way of obtaining approval for Future Acts than the right to negotiate procedure described in subdiv P. The latter requires the negotiation of parties, including the State, the native title party and the grantee party, in good faith with a view to obtaining the agreement of each of the native title parties to (i) the doing of the act; or (ii) the doing of the act subject to conditions to be complied with by any of the parties: s 31(b) NTA.

5    Section 237 NTA provides:

237    Act attracting the expedited procedure

A Future Act is an act attracting the expedited procedure if:

(a)    the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

(b)    the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

(c)    the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

6    Subdivision P, in setting out a Future Act regime, prescribes the circumstances in which the Commonwealth, State and Territory governments may validly impair native title notwithstanding the protection given to it under s 11 NTA. Failure to comply with the Future Act regime results in the ‘act’ being invalid with respect to native title by virtue of s 24AA(2) and s 24OA. The arrangement under the Future Act regime is designed to implement an object of the NTA found in s 3(b), namely, ‘to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings’. It has been recognised that the right to negotiate is a ‘valuable right’ and an ‘important aspect of the protection that the [NTA] gives to native title’: Fejo (on behalf of Larrakia People) v Northern Territory (1998) 195 CLR 96 (at [23] and [25]).

7    The right to negotiate is confined to certain categories of Future Act including: the ‘creation of a right to mine’ and the variation of such rights; the compulsory acquisition of native title rights and interests; and any other act approved by the Commonwealth minister by legislative instrument: s 26(c) NTA. The legislative intent is to strike a balance between the protection which should be conferred upon native title, on the one hand, and the development of other interests subject to recognition of native title.

8    It is clear that Parliament did not intend for the right to negotiate to apply to all acts falling within Subdiv P. It is for this reason that Subdiv P includes an expedited procedure in relation to low impact acts or acts not likely to interfere in the sense discussed in s 237 NTA (see [5] above).

9    The State makes the important point in support of the FMG appeal and in support of its own appeal, that the application of the expedited procedure is by no means exceptional or unusual. There is no presumption that the ‘right to negotiate’ will apply to acts falling within subdiv P, especially when those acts are the grant of exploration licences or prospecting licences. The State refers to an excerpt of the speech by Senator Gareth Evans, the Minister responsible for the passage of the Native Title Bill 1993, in Parliamentary debates as reported in the Commonwealth Hansard, Senate, 16 December 1993 (at 5325-5326):

The assumption is that most forms of exploration licence would probably come within this sort of category [the expedited procedure], or at least attract the potential for this sort of provision to apply. We are talking about something a little bit more than what was previously described as low impact activity: camping, beekeeping, car rallies – some essentially transient activity of that kind, which should not properly attract these provisions at all.

But there are cases of an intermediate class which clearly do not, by the nature, involve major impairment. They may involve a quite short-term presence; for example, seismic or general exploration activity – rock chopping that geologists do or outcrop surveying or something of that kind. Provided that activity does not interfere with sites of particular significance or with community life and provided that it does not create a major disturbance, it is possible for that to go ahead and attract the expedited procedure, for which provision is made in clause 31. There is still provision for objection and so on to it, but not the whole box and dice of processes that apply when a major substantive impact is involved.

(emphasis added)

10    The State contends, in support of FMG’s appeal and on its own appeal, that the general expectation, if there is one, is that the right to negotiate will not apply to the grant of exploration licences if the act is to be interpreted in the manner explained by the Minister while introducing the Bill.

BACKGROUND

11    On 13 February 2006, FMG applied for the grant of E47/1666 and E47/1667. Pursuant to s 29 NTA, on 30 November 2012 the State gave notice of its intention to grant six exploration licences to FMG, including those tenements. Those notices were accompanied by a statement pursuant to s 29(7) that the State considered that the granting of the exploration licences were acts attracting the expedited procedure provided for in s 237 NTA. Pursuant to s 32(4) NTA, the Yindjibarndi Aboriginal Corporation (YAC) objected to the State’s inclusion of the statement by lodging an objection under s 32(3) NTA. The Tribunal was required to determine whether the grant of each of the exploration licences was an act which attracted the expedited procedure. By the Determination given on 10 February 2014, the Tribunal determined that the granting of two of the proposed exploration licences did not attract the expedited procedure.

12    The Tribunal concluded that the grant of those two exploration licences fell within s 237(a) and s 237(c) NTA but did not satisfy s 237(b) NTA. In the case of exploration licence E47/1667 the Tribunal determined (at [120]) that there were two sites of particular significance for the purpose of s 237(b) NTA, being Gambarrangunha Marnda, which is a sacred hill or table top and Jinyin-nha Marnda, a navigation and viewing point. In relation to E47/1666, the Tribunal determined (at [122]) that there were three sites of particular significance for the purposes of s 237(b) NTA being Thamba Thamba Wundu, used for camping and collection of fire and hunting materials, Biyamanha Marnda, a sacred hill, and Balyinha wundu being a water source or quarry place.

THE DETERMINATION

13    The Tribunal adopted legal principles catalogued by Tribunal President Webb QC in Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (YAC v FMG) (at [15]-[21] and [102]-[121]), namely, that in considering s 237(b) NTA the following principles applied:

1.    the Tribunal was required to make a predictive assessment of what was likely to occur: YAC v FMG (at [15(a)]); Smith (on behalf of the Gnaala Karla Booja People) v Western Australia (2001) 108 FCR 442 (at [23] per French J); Parker v Western Australia (2008) 167 FCR 340 (at [8] per Moore J);

2.    there must be a real chance or risk of interference with the area or site: YAC v FMG (at [17(e)]);

3.    the interference must involve actual physical intervention: YAC v FMG (at [17(c)]);

4.    slight interference to a relevant area or site may be unacceptable: YAC v FMG (at [17(c)]);

5.    the presumption of regularity applies when making the predictive assessment required: YAC v FMG (at [102]);

6.    the Tribunal must consider the evidence provided in a particular matter to decide whether the protective regime of the Aboriginal Heritage Act 1972 (WA) (AH Act) is adequate in that case: YAC v FMG (at [120]).

14    It is common ground that each of those principles is applicable to the Tribunal’s determination in relation to s 237(b) NTA. Additionally, FMG contends that the Tribunal is obliged to consider the detailed factual circumstances of each case in making its Determination in accordance with the decision of Tamberlin J in Parker (at [67]). In my view, FMG’s submission on this point is correct.

15    The Tribunal was required to determine whether any of the sites were of particular significance and whether any interference was likely if the proposed exploration licences were granted. The Tribunal acknowledged the evidence given by Mr Woodley for YAC was that there are five sites found to be of particular significance. I will return to this evidence, but relevantly, it was discussed in the Tribunal’s analysis in the Determination (at [120] and [122]) as follows:

[120]    E47/1667

Native title exists at 100 per cent of this proposed licence. Mr Woodley outlines various sites that criss-cross this area, including Gambarrangunha Marnda, a sacred hill; Jinyin-nha Marnda, a navigation and viewing point; rock shelter and caves (some of which are said to contain remains); and an area related to ochre. No party has disputed the native title party reference to ochre in relation to E47/1667. Mapping provided by the native title party shows Gambarrangunha Marnda is located on the western boundary of the proposed licence and Jinyin-nha Marnda is located in the eastern portion of the proposed licence. Neither the grantee nor Government party have disputed the location and I accept that the mapping is correct. The grantee party refer to the native title party contentions and evidence about the hill (also referred to as ‘tabletop hill’) as being sacred, the special navigation point, and the special food source here. The grantee party state that without evidence of who utilises the sites, the duration and frequency of the use, and the non-availability of similar areas or sites, the Tribunal should not find such areas or sites as being of particular significance. The Government party says that insufficient evidence has been provided to show that the two sites named above are of particular significance to the native title party. I disagree with the Government and grantee party. I conclude, based on the specific evidence outlined about the nature of the sacred hill, including its healing powers, and the special navigation point and its uses, in contrast with other sites in the area, are sites of particular significance. I could not extend that extend [sic] conclusion to the rockshelter and caves with remains as little specific information has been provided about them (for example, are they significant because of their proximity to the sacred hill or the navigation point?) Nor could I extend the conclusion of particular significance to Jinyin-nha Wundu as this is said to be an important water source but insufficient evidence is provided. The question then is whether the grantee party activities will cause interference with the sites of particular significance. One pastoral lease overlaps the area by 100 per cent, but there is no evidence this has caused interference to the sites in the area. There is one registered site in the south of the area, and it appears there has been minimal previous activity here, with only 5 tracks and one fence line recorded by DMP. There are no dead licences or current live licences on the area. In Yindjibarndi v FMG, reference was made generally to 'hills', some of which were said to be significant because they allow a viewpoint to see in all directions. The evidence presented in that matter was broad. In the present matter, Jinyin-nha Marnda is clearly delineated as a special navigation point, together with an area related to ochre, which is not disputed, and the sacred hill with its special powers outlined. I take into account the grantee party’s attitude to heritage, and the State’s regulatory regime. However, given the nature of these sites, inadvertent interference may occur without normal negotiations of s 31 of the Act. As such, I conclude the expedited procedure does not apply in relation to E47/1667.

…

[122]    E47/1666

Native title exists on 98.51 per cent of this proposed licence, with approximately 87.2 per cent of the entire licence being covered by two pastoral leases. There are 2 dead licences on the area, which covered approximately one quarter of the area, and 11 per cent vacant crown land. The native title party refer to a number of special areas which their mapping shows to be in the north, west and south of the proposed licence including: Gambunburnha Wundu (an important water source); Thamba Thamba Wundu (used for camping and collection of food and hunting materials); Biyamanha Marnda (sacred hill); and Buwarranha Wundu (water source, hunting and camping area) and Baliyinha Wundu. One of the sites (Baliyinha Wundu) travels down into E47/1404. The native title party contend that similar sites or areas are nonexistent or sparse. The grantee party state, in their contentions, that the sites as asserted by Mr Woodley and in the native title party contentions could not be assessed without details as to their location. This was prior to the native title party providing their mapping for the areas, and the mapping now shows those locations. There are 8 registered sites recorded by DAA. The Government party states that insufficient evidence has been provided to establish the wundus referred to by the native title party are of particular significance. I agree in relation to Gambunburnha Wundu and Buwarranha Wundu, where general information is provided to show they are important, but further information to show they are of particular significance is not extended. However, I disagree with the Government party in relation to Thamba Thamba Wundu, Baliyinha Wundu and the Biyamanha Marnda sites. I find the native title party have distinguished these three sites from others on Yindjibarndi country, and have outlined the sacredness of such sites. For example, the Thamba Thamba Wundu site is still used today. In addition, the DAA register shows a high concentration of recorded sites, including eight registered and three other heritage sites. While this is of itself not compelling, tied together with the evidence of sacredness of the Biyamanha Marnda and Baliyinha Wundu, its links to other adjacent proposed licences, the variety of sites, and the native title party’s ability to distinguish the significance of these sites from other sites or locations in Yindjibarndi country, I find they are of particular significance. I then turn to whether or not the activities of the grantee party will be likely to interfere with these sites of particular significance. The activities of the grantee party will involve exploration, which is relatively low impact. In addition, I note the grantee party [sic] approach to heritage and their internal policies and procedures. I also note the State’s regulatory regime and that the native title party may have some comfort from those. However, I also note that from the way these sites are described, and the nature of their particular significance, inadvertent interference may occur should the normal negotiation between the native title party and the grantee party not proceed prior to any exploration activities being conducted on this proposed licence. As such, I conclude the expedited procedure does not apply in relation to E47/1666.

(emphasis added)

16    FMG makes the point that Mr Woodley gave no evidence as to how the grant of E47/1667 or E47/1666 would be likely to interfere with any of the five sites of particular significance. In the sense of direct physical interference, this submission is correct. But in a broader sense of the meaning of interference in s 237(b), that submission is the subject of debate. Indeed, that appears to be the central issue arising on the appeal. The conclusion expressed at [120] and [122] of the Determination with respect to each of the exploration licences is that given the nature of the sites, or how they are described, inadvertent interference may occur should normal negotiation between the native title party and the grantee party not proceed prior to any exploration activities being conducted on the proposed licence.

17    The submission is also made for FMG that the Tribunal did not expressly reach any conclusion about evidence which was advanced for FMG through Mr Weaver, and that the way the Tribunal dealt with Mr Weaver’s evidence indicates, in effect, that it accepted the evidence. I accept that this is a fair construction of the Determination.

18    In that regard, Mr Weaver set out in his affidavit the proposed program of works for each of the proposed exploration licences. The Tribunal in turn set out what the program would involve for the first two years of each exploration licence, specifically noting (at [46]-[47]):

[46]    Mr Weaver has also attached to his affidavit the proposed programme of works in relation to each of the proposed licences. While the programme is undated, a footer to the document refers to 2004-2006 and a 2003 Annual Report for the company is attached. As such, the programme is now some 10 years old. However, this has not been challenged by the native title party, and there is nothing in grantee party documents which suggests it may deviate from that programme, which indicates that the grantee party intends to perform:

•    Literature research and analysis;

•    Aerial photography;

•    Geological mapping and rock chip sampling;

•    Interpretation of historical, geophysical and geochemical data sets and target selection; and

•    Aboriginal heritage clearance.

[47]    All of these activities will occur in the first year to identify and locate targets ready for further testing by drilling. The second year of works may include:

•    Reverse circulation and diamond drilling;

•    Interpretation, resource estimation and technical reporting;

•    Metallurgical testing.

There is nothing in relation to the likely programme for future years.

19    The Tribunal found (at [46]) that there was nothing in the FMG documents suggesting it would deviate from that program of works and, in particular, there was evidence before the Tribunal from Mr Weaver that:

(a)    FMG was aware of its obligations under the AH Act;

(b)    FMG had an Aboriginal Heritage Department which was responsible for ensuring that FMG met its obligations in respect of Aboriginal sites;

(c)    FMG had a ground disturbance permit procedure which prevented FMG from disturbing any area unless a permit had been issued for that area;

(d)    FMG had adopted the Guidelines for the Management of Aboriginal Cultural Heritage;

(e)    FMG had a policy not to undertake ground disturbing activities without first undertaking a heritage survey; and

(f)    FMG regularly undertook heritage surveys with the participation of the Yindjibarndi people, although not people necessarily drawn from YAC.

(g)    FMG also points to the fact that Mr Weaver had deposed in his affidavit that he was unaware of any reason why FMG would not, prior to undertaking ground disturbing works within the Yindjibarndi Native Title Determination Area, including over the area of the enquiry tenements, undertake Aboriginal heritage surveys with the participation of the Yindjibarndi people with a view to identifying Aboriginal sites.

20    FMG correctly points to the fact that the Tribunal also concluded in its Determination (at [29] incorporating YAC v FMG (at [114])) that FMG would have regard to the State’s regulatory regime and that the State’s regulatory scheme was not ineffective.

21    Additionally, the Tribunal concluded in relation to E47/1667 (at [120]) that there had been a pastoral lease which overlapped E47/1667 by 100% and that there had been no evidence that the pastoral lease had caused any interference to the sites in the area. As to E47/1666, FMG points to the fact that the Tribunal concluded that its exploration would be relatively low impact (at [122]).

Evidence in relation to the five sites

22    There was ample evidence as to the significance of the sites. For example, at [93] of Mr Woodley’s affidavit, affirmed 29 July 2013, he provided the following:

The Marndu (hills) in the areas of the Proposed Tenements are very important, for example in E47/1383 in the area of George River, there is Ngarlawungga Marnda, named after the wundu situated near by. There is also Birditha Marnda, Yardiyarranha Marnda and Garliyarnha Marnda. Located in E47/1667 are many marnda, including, Buwarranha marnda and Biyamana marnda. There is Jalurra dance for these marnda made by Old Wally Bagarraman. There is also Gamburrungunha Marnda. Gammurrungunha is the real name for Mt Florence Station. Not far from this marnda heading towards the station is an old law ground where William Ned went through Birdirra law. Yindjibarndi law grounds do not stop being sacred areas if they are not used for a long time, because they are still ‘alive’ in the Ngurranyujunggamu. In the same way the Marndangarli (hills) are ‘alive’ for the Yindjibarndi People; and when we sing them in our ceremonies we can feel them and they can feel us. This is how we maintain our connection and belonging to our Ngurra, even when we aren’t physically there. The Marnda shown on the maps are all of particular significance to the Yindjibarndi People because located within them are Yamararra (rock-shelters and caves). Yamararra are extremely important to Yindjibarndi People because some of them hold the physical remains of our old people and others, their sacred gear. Some of these Marnda shown on the map are also the source of Yarna (ochre) that we collect and use in our Birdirra and Nhunda ceremonies and also when working Thalu (increase) sites. It is Yindjibarndi law that each Ngurrara has to collect ochre from there (sic) own Ngurra to perform ceremonies otherwise we are not respecting the Ngurra we were given by Minkala.

23    In addition, specifically in relation to the three sites referred to as being of particular significance and found within E47/1667, he deposed at [98]:

i.    Gambarrangunha Marnda is a tabletop hill north of the Mt. Florence station. Gambarrangunha is the real name of that station. Gambarrangunha is a sacred hill to the Yindjibarndi as it’s also associated with Marbarn (power to heal). Yarna (ochre) is found near this Marnda and only the most senior law mans and Elders can approach the site and collect the Yarna. The Yarna is used for Birdirra Law. William Ned who is Ned Cheedy’s young brother went through Birdirra Law here. Gambarrangunha Wundu is also an important place for the Yindjibarndi people as it is a source for food and gathering materials such as Gandi (sacred stones).

ii.    Jinyin-nha wundu is the section of the river Marribiyanha it starts at the junction where it meets up with Biliguthanha where the trail heads yaayu (east) Yaayu-wurra. Jinyin-nha keeps going up towards a place called Gamburrungunha (Mt Florence station) this is the main Ngurra of the Ngurrarangarli of this part of the country. This wundu was used for Yindjibarndi traveling through country and other language groups visiting Yindjibarndi Ngurra for ceremonies. The Wundu is a very rich source of food and water located right through from top of the tableland to the plain country, making the journey easy for all traveling from one end to the other.

iii.    Jinyinha Marnda is a navigation point that travellers who are coming through Yindjibarndi Country used so they don’t get off track and in trouble by the Ngurrara’s. If they get off track it could mean serious trouble for them. Yindjibarndi also use this Marnda as a viewing point to see what is happening around the country and to keep a watchful eye on the movement of people and animals.

24    In short, in relation to the three sites within E47/1666 Mr Woodley described Thamba Thamba wundu as a site used for camping and gathering of food and hunting materials (at [100]), Biyamanha marnda as a sacred hill, and Baliyinha wundu as an important water source. In addition to the comments referred to above, he also observed at para 73 of his affidavit:

It is important that these water sources are properly looked after in accordance with Yindjibarndi Law. The Birdarra Law tells Yindjibarndi People how to look after water sources, including by ensuring that the person with the right Galharra is the first person to approach the Wundu or the Jinbi and to perform necessary ceremonies. Water is the most precious and sacred resource and must be protected and respected, because if the water resources dry up everything else will die. For Yindjibarndi People, the Wundu in our country are central to our homes, our spirit and our soul; they are the essence of our being.

25    In particular, he deposed at [100] that:

…

ii.    Balyinha wundu – Thee are many Marningarli (engravings) found in the area of this tenement, including the 7 that have been registered with the DAA. These Marningarli depict the Marrga, powerful spiritual beings who we believe, were sent to earth by Mingkala, our Yindjibarndi name for God.

Marningarli are considered sacred by Yindjibarndi people who continue to live subject to customary law because they are physical proof of the existence and presence of the Marrga in our country. The creative activities of the Marrga brought Yindjibarndi Country, the Yindjibarndi People and Yindjibarndi Language into existence, in the Ngurranyujunggamu – a word that refers both to the creation time, ‘when the earth was soft’; and, to the ever-present spiritual domain in which the Yindjibarndi people, Yindjibarndi language and Yindjibarndi Country, and all that is within, from both past and present, are not different things, but related parts of a single thing, called ‘Yindjibarndi’). We, the Yindjibarndi People, are the descendents of the Marrga; and we carry, and live under the, Birdarra Law – the sacred Law of Mingkala that was passed on to us by the Marrga and which we reaffirm each year in our religious ceremonies.

iii.    Thamba Thamba wundu is a very important place for Yindjibarndi as old people used this wundu for camping and gathering food and materials for their spears and hunting tools, and we still use it today. My Yabiji (Grandfather) Woodley King, used this place every time he travelled from one end of the country to the other. I would go with him and we would visit other Yindjibarndi places like Buthunha, Bunthurrunha, Wirndamarra and Gartharrmunha. My Yabiji always traveled up and down and all around the Yindjibarndi Ngurra, just like his old people did back in the old days, and like I and other Yindjibarndi People do today, making sure that the Ngurra still recognizes the Yindjibarndi. He would tell me how important this was to do. There are artefacts there which demonstrate the occupation, use and enjoyment of the area by our past elders.

iv.    Biyamanha marnda is a very sacred hill with special powers given by the spirits. Old Wally was given a Nhunda about this Marnda by the Wanda Thalu. He was taken in his Buwarri (dreaming) and given this Nhunda to pass onto the Yindjibarndi People.

…

THE KEY ISSUE

26    The Tribunal analysed FMG’s arguments in respect of the applications of the subsections of s 237 NTA (at [55]-[69]):

[55]    In relation to s 237(a) the grantee party (at 9.1-9.11) outline their response to the community activities the native title party have raised. The grantee party divides up the activities as follows:

•    ‘Collecting, recording, documenting, publishing and broadcasting the language, history, and culture of Yindjibarndi’

•    Looking after and managing Yindjibarndi country

•    Looking after and managing sites and areas in Yindjibarndi country

•    ‘Activities which manifest the religion and beliefs of the Yindjibarndi people’

[56]    The grantee party states that the grant of the proposed licences will not affect the first dot pointed activity because (at 9.3):

•    Heritage surveys are carried out by the Yindjibarndi people and ‘that there is no reason to suspect they will not continue to occur in the future’ including the proposed licences. [I note in spite of the fact that YAC state they do not wish to carry out the heritage surveys for the grantee party, there is evidence from the native title party and the grantee party that Yindjibarndi people (although not YAC members) carry out such surveys.]

•    'some Yindjibarndi People do not wish to carry out heritage surveys for the Grantee Party. That is even though the Grantee Party intends to invite them to participate in activities for the purpose of collecting, recording, documenting cultural heritage, they have foreshadowed they do not wish to do so’.

•    The grantee party states the native title party appears to have already collected information about sites, stories and songs from the affected area (and cites Mr Woodley’s affidavit (at 66)) and note that the native title party plans to complete their collection of information in the next ten years or longer (native title party contentions (at 50) and Mr Rijavec’s affidavit (at 123(a)). The grantee party states ‘given the unknown frequency and unknown intensity of [these activities, it] cannot be said that any interference will arise from the grant’ of the proposed licences.

[57]    As to the second and third dot points in [55] above, the grantee party state that ‘it is difficult to determine how these activities manifest themselves in relation to [the proposed licences]’ (at 9.4). The grantee party states the absence of the maps to the affidavit is problematic. I have noted already that these maps have now been provided and no party indicated they wished to provide further submissions in relation to those maps. I agree, however, that it is not clear from the affidavit where many of the activities occur in relation to the proposed licences, even now with the benefit of the maps which have been provided. The grantee party states that it is not indicated how frequently the Yindjibarndi people go to the places Mr Woodley says are visited, or when they were last visited (apart from saying they are done ‘frequently’).

[58]    The grantee party state that even if these are activities contemplated by s 237(a) and are conducted on the proposed licences, there is unlikely to be direct interference because:

•    Heritage surveys are intended to be undertaken with Yindjibarndi people prior to ground disturbing exploration and that such surveys ‘will also facilitate [these activities] to the extent Yindjibarndi people wish to participate in those surveys’

•    The proposed licences cover an area of 106,505.25 hectares and so it is unlikely that the activities of the grantee party will ‘have anything other than a nominal impact (if any) on the physical aspects of [these activities]’.

[59]    In relation to the last dot pointed activity in [55] above, the grantee party states ‘there is nothing in the evidence of the native title party to suggest that [these activities] actually occur on the [proposed licences] or a place having a relevant nexus with the [proposed licences]’ (at 9.11).

Section 237(b)

[60]    In relation to s 237(b), the grantee party addresses each of the proposed licences in turn and I summarise their contentions below at [61] – [67]. They also make some references to social and community activities which are applicable to the consideration of s 237(a) of the Act.

[61]    E47/1383

The grantee party states that ‘it is doubtful’ the areas referred to in paragraph 95 of Mr Woodley’s affidavit lie within the native title area, or that any DAA registered sites within the proposed licence are within an area where the native title party holds native title. The grantee party states a sufficient nexus has not been established (as referred to, for example, by Member O’Dea in Wanparta v Western Australia (at [43])).

[62]    E47/1404

The grantee party notes the whole of the Fortescue River has been called ‘of great significance’ and ‘important for hunting and camping’. They also note the location of rock paintings or engravings is not identified and the register of sites shows one artefact/scatter site.

[63]    E47/1667

The grantee party notes that a ‘tabletop hill’ is a sacred hill and is partly on this proposed licence. Also they note the native title party says a section of the river here is a source of food for travellers, ‘though the frequency of travellers is left unstated’. They refer to the native title party’s ‘navigation point’ which ‘is important to travellers for navigation purposes as well as good viewing point’, and they note the DAA register shows one Aboriginal site being a modified tree, artefacts/scatter site.

[64]    E47/1433

The grantee party state it is doubtful any of the areas referred to in paragraph 99 of Mr Woodley’s affidavit are in an area where native title is held by the native title party other than Waluna Wundu and Muthanha Wundu, which are said to be campsites and fishing and hunting places. There are no DAA registered sites.

[65]    E47/1666

The grantee party refers to the native title party’s statements about portions of rivers being an important source of water, camping and food gathering, but note that no indication about the frequency of those activities is provided. They also refer to engravings, seven of which are registered with DAA and also refer to a sacred hill. The grantee party contends they cannot be assessed by the Tribunal without further details as to their location - they quote Member O’Dea in WF (Deceased) v Western Australia (at 10.19) and also refer to Barnes v AngloGold Ashanti Australia (at 10.20). The grantee party says in their view, the native title party evidence is lacking in terms of who utilises the areas or sites, for how long they are used on each occasion and how frequently those occasions are, as well as the ‘non-availability of similar areas or sites’. The grantee party also states that even should there be areas of particular significance, the limited rights of exploration are unlikely to cause interference.

[66]    The grantee party says engraving sites may be areas or sites of particular significance, but refers to Mr Weaver’s affidavit and suggests interference is unlikely because:

•    The grantee party understands its obligations under the AHA;

•    They have adopted processes to avoid interference with sites;

•    They follow the Guidelines for Consultation with Indigenous People by Mineral Explorers published by DMP; and

•    The grantee party does not undertake ground disturbing activities without a heritage survey first being undertaken.

[67]    E47/1435

The grantee party does not appear to have provided any contentions or evidence in relation to E47/1435.

Section 237(c)

[68]    In relation to s 237(c), the grantee party says the native title party do not address the direct significant physical disturbance to the land or waters as required by s 237(c). The grantee party states no physical disturbance has been identified by the native title party in the grantee party’s view (and they cite the case of Uunguu v Western Australia at [4]).

[69]    In any event, the grantee party states the grant of the proposed licences is not likely to involve major disturbance because:

•    The grantee party’s rights will be regulated by the State’s regime;

•    The presumption of regularity is not displaced and it must be assumed the grantee party will comply;

•    The grants will be subject to endorsements and conditions;

•    The area of the proposed licences are wholly covered by pastoral leases and so has been and will continue to be subject to disturbance (and they quote Mr Woodley’s affidavit (at 143), which they say refers to disturbance to flora, fauna and water sources); and

•    There are no sensitive topographical, geological or environmental factors relevant to the proposed licences, which they say suggests a view by the general community that exploration activities would not lead to disturbance to land or waters.

27    In relation to s 237(b) and s 237(c), the Tribunal summarised the evidence of Mr Woodley (at [76]-[80]) as follows:

[76]    In regard to s 237(b), Mr Woodley’s affidavit states:

•    ‘there are many sites, objects and places [within the proposed licences]’ (at 92) which include all wundu (watercourses), yirrgarn (birthplaces), thungari (burial sites), yamararra (caves and rock shelters), thalu (increase sites and healing sites), maringarli (rock paintings and engravings), budbungarli (artefacts), yarna-ngarli (ochre quarries) and wurrungarli (special hunting hides).

•    some of the sites within the proposed licences are men only sites (which he outlines in more detail for each proposed licence) and have been registered with the DAA (at 93) - he says they are sites of particular significance and are outlined on maps at annexures 7-12 to his affidavit (these maps were provided later, as outlined at [6] of this decision). [I do note that for E47/1383, DAA site ID 18798, ID18799 and ID 18800 are listed as: closed / male only / ceremonial/quarry. No sites are listed on the DAA register as being related to ochre, but this does not mean that such does not exist in the area - that will turn on the evidence. I note the Government party accepts there is an ochre related site on this proposed licence. The native title party also suggests ochre is to be found on E47/1667, although no other party appears to have commented on this.]

•    ‘I know that there are many significant sites, places and objects in the area of the Proposed Tenements because we sing about them in our ceremonies’ (at 94). He states that the hills are very important in E 47/1383 in the area of George River (at 95).

•    that E47/1667 has many hills (marnda) including Buwarranha Marnda and Biyamana Marnda. He says there is a special dance for these marnda and he also points to the marnda associated with Mount Florance station where nearby there is also an old law ground. He states the marnda on the maps ‘are all of particular significance...because located within them are yamararra (rock shelters and caves)’ (at 95). He states that yamararra are ‘extremely important’ ‘because some of them hold the physical remains of our old people and others, their sacred gear’. I note that for marnda, he states they are all of particular significance. In relation to the yamararra, some of them are said to hold remains. I accept this can make them of particular significance compared with those that do not hold remains.

•    that some of these marnda are also the source of ochre (yarna) that are used in ceremonies and when working with increase sites. He states ‘it is Yindjibarndi law that each ngurrara has to collect ochre from their own ngurra to perform ceremonies otherwise we are not respecting the ngurra we were given by minkala’ (at 95).

•    the Fortescue river is ‘highly significant’ (at 96) and he spends some time talking about the water serpent (at 96).

[77]    Mr Woodley also outlines some further information on each part of the proposed licences that he has visited, and provides some information on why they are of particular significance or what social and community activities are done there. A snapshot of his evidence is outlined briefly in the table below, and crosses over consideration of s 237(a) and s 237(b) - I draw the distinction between the evidence for each of those sub-sections as needed throughout this decision. In addition, where the location has not been specified in the written affidavit, it is often shown in the native title party mapping, and many of the sites left blank below are shown in that mapping as being on the relevant proposed licence.

[78]    He states some of the sites he refers to are outside of the proposed licences ‘but are interconnected to areas of significance within the proposed tenements’ (at 109). He refers to the s 18 process, the Auditor General’s report entitled Ensuring Compliance with Conditions on Mining (published in September 2011), the DAA’s report (at 110-112) as all supporting his assertion that Yindjibarndi sites have failed to be protected. I deal with these arguments in more detail throughout this decision.

[79]    He provides much detail (at 114-137) about a DAA s 18 process which the native title party were not satisfied with, and the associated State Administrative Tribunal appeal process. He then states (at 138-139) specific instances where he says the AHA failed to protect Yindjibarndi sites of particular significance. He concludes (at 140) that ‘the Yindjibarndi people cannot rely on the AHA to protect our sites’. A letter annexed to Mr Woodley’s affidavit dated 6 June 2013 from FMG says ‘Fortescue invites, and will continue to invite, YAC to nominate such persons to participate in Fortescue commissioned heritage surveys’. The letter also states ‘Fortescue remains open to executing a heritage protection agreement which contemplates the involvement of YAC and Wirlu-Murra Yindjibarndi Aboriginal Corporation over Fortescue’s granted and pending tenements on Yindjibarndi traditional lands and would welcome YAC’s participation in the heritage process on this basis. I would encourage YAC to further consider its position on this matter’. President Webb considered much of this similar evidence in [YAC v FMG], and I adopt her reasoning from [102] – [121] in relation to these matters.

[80]    In regard to s 237(c), there is little evidence in Mr Woodley's affidavit, apart from stating that FMG will obtain control over the management of Yindjibarndi country (at 145). Mr Woodley argues the grantee party will not be able to ensure that exploration activities won’t have a major disturbance on the flora, fauna and water sources on the proposed licences which will impact on Yindjibarndi and non Yindjibarndi people. He does not, however, provide any particular evidence regarding these allegations or any special features on the proposed licence.

28    Having done that, the Tribunal summarised its task in this way (at [105]-[116]):

[105]    The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken in relation to the grant are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smith at [23]). The assessment is also contextual, taking into account factors that may already have impacted on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).

[106]    The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver v Northern Territory (at [29]-[30]), Deputy President Sosso (whose approach I adopt) outlined that:

The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.

[107]    I have outlined in detail at [75] and [90]-[91] above the native title party’s evidence and contentions in relation to s 237(a).

[108]    The grantee party’s evidence and contentions in relation to s 237(a) of the Act are outlined at [55]-[59] above.

[109]    The Government party evidence and contentions in relation to s 237(a) are outlined at [19]-[25] above.

[110]    I turn to President Webb’s observation at [59] of [YAC v FMG], where she states:

There needs to be quantifiable evidence before the Tribunal of ongoing community and social activities on, or having a nexus with, the relevant area in order to assess whether there is a real risk of those activities being adversely affected by the exploration activities if the grant is made.

In the matter of the proposed licences in this decision, such evidence has not been provided.

[111]    I accept the grantee party contentions that interference with the native title party social and community activities is unlikely for the reasons outlined at [58] above.

[112]    In addition, the Government party outline that even assuming community and social activities are established to occur on the proposed licences, interference from the grant of the proposed licences is unlikely to occur for the reasons outlined at [25] above.

[113]    I have no doubt that social and community activities occur throughout the native title party determined area and that some of the these activities will occur on or near the proposed licences in this matter. However, there is little evidence that such activities are carried out in such locations, or at such a level of intensity, that they will be interfered with by exploration activities of the grantee party.

[114]    In the circumstances, taking into account all the available evidence, I conclude that grant of the proposed licences is unlikely to interfere directly with the carrying on of community and social activities of the native title party for the purposes of s 237(a) of the Act.

Sites of particular significance (s 237(b))

[115]    The issue the Tribunal is required to determine under s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (or more than ordinary) significance to the native title party in accordance with their traditions. As noted, it is established in DAA documentation that there are a number of Registered Sites within the overlap between the determined area and the proposed licence areas (see Attachment One to this decision). However, this does not mean that there may not be other sites, or areas of particular significance, to the native title party within the proposed licence/determination area overlaps, or in the vicinity. The DAA Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.

[116]    In summary, the Government party have not accepted that any of the many sites referred to by Mr Woodley or in the native title party contentions are sites of particular significance. The grantee party accepts that engraving sites/areas may be of particular significance, but states that interference is unlikely (at 10.24-10.25).

(emphasis added)

29    The Tribunal then went on to consider the evidence and arguments and expressed the conclusions (at [120]-[122]) set out above (at [15]).

30    FMG’s basic complaint is that ‘we don’t know why we lost’. FMG contends the Tribunal has not given reasons as to why the granting of two exploration licences will interfere in the sense discussed in s 237(b) NTA. FMG’s argument is put various ways.

31    The primary argument on an amended notice of appeal was that there was a failure on the part of the Tribunal to give reasons in relation to this central issue. In response to this contention, YAC argue that while there is a statutory obligation to give reasons, the content of the obligation is to be measured having regard to the nature of the Tribunal’s statutory obligation, which was to consider the Determination and to form a view. There is no doubt, the YAC argue, that extensive reasons considering all of the parties’ submissions were evaluated against a backdrop of clear enunciation and recognition of the relevant legal principles. Having carried out that exercise, the Tribunal found in favour of the arguments advanced by FMG and the State in respect of some of the sites but in favour of YAC in respect of other sites. It is immaterial that it did not spell out at [120] and [122] the precise nature of the physical interference likely to occur at the sites concerned because it was satisfied that the particular sites were of such significance that activities which would inevitably be associated with exploration and on which evidence was given, even though they may be pursued with conscientious regard to heritage and cultural considerations, would be likely to interfere with the manner in which the sites were traditionally regarded.

32    It was not necessary for the Tribunal to descend to greater particularity, YAC would argue, by indicating, for example, that it would be likely that a particular form of activity would, for example, deface a rock painting. Inherent in the argument advanced for YAC is that it is not possible to judge whether interference is likely without having regard also to the nature of the particular site concerned, as exploration activity to a less significant site would be less likely to interfere than exploration activity in the vicinity of a particularly significant site. To some extent, this raised further questions to be considered in the appeal as to what form of interference s 237 NTA contemplated.

FMG’S APPEAL

Appeal ground 4

33    FMG focussed predominantly on a new ground 4 in the following terms:

6    Further or in the alternative, to the above Grounds of Appeal, in making its determination under s.237(b) [NTA] in relation to each of E47/1666 and E47/1667 the Tribunal erred in law by failing to give reasons, or adequate reasons, for the determination made.

7    In the result, the Tribunal made the Determination:

7.1    by failing to take into account relevant considerations; and, or

7.2    by taking into account irrelevant considerations; and, or

7.3    not in accordance with the law.

34    There was some overlap between FMG’s contention that reasons were not provided (ground 4) and its contention that factual findings were not made (ground 1).

35    FMG argues that the Tribunal’s conclusions, if they were findings of fact, were boldly stated without any reasons in support in circumstances where the Tribunal appeared to have accepted FMG’s evidence. This, it said, was contrary to the obligation to give reasons or adequate reasons. Although FMG accepts there is no freestanding common law duty to give reasons for making a decision under a statute: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64 (at [43]), FMG argues that the statute itself indicates the need to provide reasons. According to FMG, the following factors in the statutory regime indicate the Tribunal is required to give reasons:

(a)    the Tribunal is required to make its determination in writing under s 164(1) NTA;

(b)    there is a right of appeal from the Determination under s 169(1) NTA, the relevance of which is identified in Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 per Priestley JA (at 734E);

(c)    without reasons the statutory right to appeal (in contrast with a right to a rehearing) would be frustrated: Parker per Branson J (at [50]); Kennedy Miller Television per Priestley JA (at 735E); Hancock v Executive Director of Public Health [2008] WASC 224 per Martin CJ (at [62]);

(d)    by its Determination, the Tribunal is required to state any findings of fact upon which the Determination is based pursuant to s 162(2) NTA; and

(e)    merely stating findings of fact would not be enough to satisfy the statutory requirements; the reasoning process adopted by the Tribunal from the findings must be exposed: see Fleming v The Queen (1998) 197 CLR 250 (at [28]).

36    FMG argues it would be an error of law for the Tribunal to fail to state reasons: Dornan v Riordan (1990) 24 FCR 564 per Sweeney, Davies and Burchett JJ (at 573).

37    FMG also contends that it is open to the Court to draw the inference that the Tribunal did not make the determination based on material before it and so made a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ (at [69]); Repatriation Commission v O'Brien (1985) 155 CLR 422 per Brennan J (at 445-446).

38    It is unnecessary to traverse the authorities further as I accept (as does YAC) that there is an obligation on the part of the Tribunal to deliver reasons. YAC submit that the Tribunal has clearly done so.

39    I am not persuaded that there is either an error of law or jurisdictional error. Although ideally the Tribunal might have indicated precisely what aspect of the proposed exploration was likely to constitute a relevant interference, it is clear that the Tribunal reached the conclusion based on the nature of the particular sites and the nature of the activities constituting exploration. It must be emphasised that the task of the Tribunal in such an application is to make a predictive analysis. In this instance it was to take into account its apparent reliance upon the evidence given for FMG as to the precautions it would take and balance those against the nature and importance of the particular site in terms of the evidence given. That is clearly the approach it has taken and, in my view, it is the correct approach.

40    There is no authority to suggest that some form of particular damage to the site must be identified or inevitable before it can be said that interference under s 237 NTA is likely to arise. The task for the Tribunal is to make the predictive analysis as to whether the interference is likely to arise and to make a finding in relation to interference. The Tribunal has devoted pages to that task. As in Parker, it will not be a breach of the obligations under the NTA to refrain from reciting or referring specifically to detailed evidence disclosed, so long as an actual finding is made. In that decision the evidence was not disclosed due to its confidential nature, but the Full Court was not prepared to conclude that the primary judge’s decision upholding the Tribunal decision was wrong for failure to disclose reasons. Moore J said (at [16]):

If the Tribunal made no finding about what constituted interference in accordance with their traditions then the duty imposed by s 162(2) would not arise. The subsection obliges the Tribunal to state findings made if they were the basis for the determination. However, if no finding was made about whether the claimed traditions existed or whether particular conduct might constitute interference then it might be inferred that the Tribunal failed to address one matter it was required to address, namely what would constitute interference in accordance with the claimants’ traditional laws and custom. It is only after that factual question is answered that the Tribunal can then consider whether there is likely to be interference.

41    Branson J said (at [51]-[52]):

51    The determination in this case was a determination that the act is an act attracting the expedited procedure. The findings of fact upon which the determination was immediately based were that the act satisfied the requirements of each of paragraphs (a), (b) and (c) of s 237. So far as s 237(b) is concerned, the material factual matters for the Tribunal’s consideration were whether:

(a)    the Barimunya site fell within the area of the proposed exploration licence;

(b)    the site was of particular significance, in accordance with their traditions, to the native title party; and

(c)    the grant of the exploration licence was not likely to interfere with the site.

52    The Tribunal stated in its reasons for determination its findings in respect of each of the above matters. As indicated above, it was not required, technically speaking, to make a finding about what would constitute interference, in accordance with the native title party’s traditions, with the Barimunya site. The evidence in this regard was not in dispute. Nonetheless, it was appropriate for the Tribunal to indicate, as it did, the evidence that it took into account in this regard in making its determination.

42    As above, Branson J noted that it was appropriate for the Tribunal to indicate, as it did, the evidence that it took into account in this regard in making its determination. In my assessment the Tribunal has discharged that function at [120] and [122] of the Determination. It would appear in the present Determination the Tribunal has provided much more information than the information that was challenged in Parker. In this instance, the Tribunal has set out in detail the nature of the sites, the nature of the exploration activities and reached the view that having regard to the particular sites and the nature of the activity, inadvertent interference of the relevant sort may be likely without the normal negotiation procedures under s 31 NTA.

Appeal ground 1

43    FMG also contends the Tribunal was at fault in failing to make findings of fact as to the type, nature and quality (including whether physical) of interference to each of the five sites of particular significance which was likely to occur by the grant of exploration licences. FMG contends that the obligations arose because:

(a)    there was a contest in the Tribunal as to whether there would be any interference to the sites of particular significance;

(b)    the predictive assessment required under s 237(b) NTA could not be made without the findings of fact having been made;

(c)    actual physical intervention was required for the interference to be ‘outside’ s 237(b) NTA; and

(d)    without the findings being made, a party’s right to appeal under s 169 NTA would be frustrated.

44    Section 162(2) NTA contains a statutory obligation to state findings of facts, and is in the following terms:

162    Determination of the Tribunal—right to negotiate applications

…

Tribunal must state findings of fact

(2)    The Tribunal must state in the determination any findings of fact upon which it is based.

45    FMG argue that where there is a statutory obligation to state findings of fact, as there is here by s 162(2) NTA, and no statement of fact is made, it can be inferred that no such finding of fact was made: Yusuf per Gleeson CJ (at [5]), per Gaudron J (at [35] and [37]), per McHugh, Gummow and Hayne JJ (at [69]); see also Parker per Moore J (at [16]) and per Branson J (at [50]); Minister for Immigration and Border Protection v MZYTS (2013) 13 ALD 547 (at [40]-[52]).

46    There is a discussion in Parker (commencing per Moore J at [7]) as to the difference between findings of fact which sustain ultimate findings of fact and the ultimate findings themselves. Section 162(2) NTA speaks of ‘any’ findings of fact on which the determination is based. Moore J expressed the view (at [7]) that the Tribunal is obliged to set out the findings of fact it makes which lead to the determination of the matters covered by the inquiry which, in this instance, is the determination of whether the act is an act attracting the expedited procedure. As his Honour noted (at [7]), a statutory obligation to reveal fully the found facts on which a decision is based is understandable given the significance of a decision that a Future Act attracts the expedited procedure. The converse would also be true.

47    Moore J identified (at [8]) the ultimate Tribunal’s finding in the case has to be whether the ‘act is not likely to interfere’ (or is likely to interfere) in one or more of the several ways identified in s 237 NTA. As his Honour said, it is difficult to characterise that issue as a finding of fact, because what the Tribunal is required to do involves a method of analysis very similar to the method used to ascertain whether an asylum seeker is entitled to a protection visa. That is, to make findings of fact about past and present events and to determine what is likely to occur in the future. According to Moore J (at [8]), determining what is likely to occur in the future is a matter of speculative, though informed, appraisal and not fact finding about present or past events, though those findings will inform the appraisal. For those reasons, his Honour made the point (at [14]) that a finding that there was (or was not) a real risk of interference is not a finding of fact, and is not a matter to which the obligation created by s 162(2) NTA applies.

48    At [16] his Honour observed that if the Tribunal had made no finding about what constituted interference in accordance with their traditions, then the duty imposed by s 162(2) NTA would not arise. The factual question is whether the claimed traditions existed or whether particular conduct might constitute interference. It is only after that factual question is answered that the Tribunal can then consider whether there is likely to be interference. That likelihood of interference, however, is not the fact to which s 162(2) NTA is directed, as that is speculation about a likely future event.

49    In this instance detailed findings were made about the nature of the exploration and, in particular, about the nature of the sites. There is no doubt that the Tribunal expressly and inferentially took into account the nature of the sites in forming a view as to whether it was likely that the exploration activities may give rise to the interference to which s 237(b) NTA is directed. This would appear to be a course entirely open to the Tribunal, as the analysis by Moore J in Parker concludes (at [4]). Approaching the matter entirely hypothetically, his Honour observed that there may have been a number of logical bases which founded the conclusion reached by the Tribunal in that proceeding (that there was no likelihood of interference). As his Honour said (at [4]):

… One might be that the site was not of particular significance in accordance with the claimants’ traditions. That would be based on a finding about existing facts. Another might be that the Tribunal did not accept the evidence concerning what constituted the claimants’ traditions. Again that would be based on a finding about existing facts. …

50    As his Honour noted further (at [4]):

… This third conclusion could result from several subsidiary conclusions. One might be that notwithstanding the future act, it was not likely anyone would enter the site. Another might be that notwithstanding the future act, it was not likely anyone would enter the site unaccompanied by senior members of the claim group and, even if they did, it was not likely they would do so in any circumstance other than when it was absolutely necessary.

51    Of course, the conclusion of the Tribunal in the present instance was the opposite to that under consideration by his Honour in Parker, but the discussion by his Honour of the means by which the ultimate conclusion could be reached, involves consideration of the same factors.

52    Applying that comparison to the present circumstance, the Tribunal has considered the nature of the proposed exploration, including all the preventative measures and has considered the nature of the particular sites. It has published its findings in relation to all of those facts. In my view, it does not need to go further to say why a particular piece of exploration activity is likely to interfere with a particular site in the sense for which FMG contends. Rather, as noted in Parker, that is the conclusion based on the examination of the underlying facts concerning the activities and the sites. In my view, the Tribunal has complied with its obligations under the NTA and I would not uphold the first ground of appeal.

Appeal ground 2

53    Ground 2 of the FMG appeal is that in making its determination under s 237(b) NTA, the Tribunal erred in law by holding that ‘inadvertent interference may occur’ without normal negotiations under s 31 NTA, where there was no evidence to support that finding. It is true, as FMG submits, that the question of whether or not there was evidence for a factual finding is a question of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 per Hayne, Heydon, Crennan and Kiefel JJ (at [91]).

54    Once again, this ground overlaps with the complaints contained in ground 1 as to lack of reasoning and lack of factual finding, in the sense that the basic complaint of FMG is that there was nothing in the evidence advanced by YAC which demonstrated how the grant of the exploration licences could or would be likely to interfere with any of the five sites of particular significance.

55    This ground of appeal must be treated in much the same way as the two preceding grounds. There was ample explanation as to the procedure likely to be adopted in relation to the exploration and it is certainly true, as FMG contend, that there were indicators that FMG would adopt best practice to avoid difficulties arising. It is also true, as FMG contend, that the focus of the evidence from YAC was in relation to the nature of the sites rather than how FMG’s exploration might interfere with those sites. Notwithstanding this, there was clearly an evidentiary basis from which the Tribunal could and did conclude that interference would be likely in relation to certain sites, because of the nature of the sites and because of the nature of the exploration activities. This is the ultimate conclusion it was required to determine one way or the other in order to form a view for the purposes of s 237(b).

State’s support for the FMG appeal

56    As will be seen below, the State’s primary argument is put on the basis that the Tribunal failed to make crucial findings of fact as to the nature of the interference with the five sites and accordingly, failed to carry out a ‘predictive assessment’ in accordance with s 237(b) NTA.

57    The State also argued that the Tribunal failed to give reasons or adequate reasons for its Determination and that the lack of reasons in combination with the lack of relevant findings, the form of findings or the inferences made (that ‘inadvertent interference may occur’) and the nature of the evidence relied upon, meant that the Tribunal had failed to carry out the correct legal test.

58    These arguments have been substantively considered in the discussion concerning FMG’s grounds of appeal above. In my view, the process adopted by the Tribunal, which I have described, did constitute a predictive assessment.

Conclusion on the FMG appeal

59    For these reasons, in my view, none of the grounds of appeal advanced by FMG or the State can succeed and I would dismiss the appeal.

THE STATE’S APPEAL

60    Many of the arguments arising on the FMG appeal and much of the consideration of the arguments is also relevant to the State’s appeal.

61    The State advanced seven grounds of appeal in support of its contention that the Tribunal failed to construe and apply s 237(b) NTA correctly in making its Determination.

62    The grounds of appeal in their entirety are as follows:

1.    The Tribunal erred in law by failing to undertake a predictive assessment as to whether the “acts” (the grants of the tenements) would be likely to interfere with areas or sites of particular significance to the native title party in accordance with their traditions.

2.    The Tribunal erred in law by concluding that there is a real risk of interference with sites of particular significance to the native title party without considering the nature of the likely physical effect of the acts upon the sites, or, whether there would be a physical effect at all, as is required by s 237(b).

3.    Further to ground 2, the Tribunal erred in law by concluding that there is a real risk of interference with sites of particular significance to the native title party without considering whether any effect upon the sites in question would be substantial or non-trivial, as required by s 237(b).

4.    The Tribunal erred in law in taking into account an irrelevant factor, namely, the possible effect of the right to negotiate procedure under s 31(1)(b) [NTA] in mitigating or avoiding interference with sites of particular significance to the native title party in carrying out an assessment under s 237(b).

5.    The Tribunal erred in law by concluding that there is a real risk of interference with sites of particular significance to the native title party in the absence of any evidence of likely physical effects upon the sites.

6.    The Tribunal erred in law by failing to give any or adequate weight to a factor of great importance, namely, the nature of the grantee party’s proposed activities in respect of the tenements given the nature of the identified sites.

7.    In respect of E47/1667, the Tribunal erred in law by concluding that there is a real risk of interference with sites of particular significance in circumstances where it also found that there was no evidence that an overlapping pastoral lease had caused interference with the sites. The Tribunal’s conclusions in light of this and other findings were manifestly unreasonable or unsupportable.

Appeal grounds 1, 2, 3 and 6

63    In considering the State’s primary ground of appeal concerning predictive assessment, it is helpful to also consider grounds 2, 3 and 6, which are related.

64    The first ground advanced for the State was that the Tribunal erred in law by failing to undertake a ‘predictive assessment’ as to whether the ‘acts’ (the grants of the tenements) would be likely to interfere with areas or sites of particular significance to the native title party in accordance with their traditions.

65    By way of summary of the State’s position, it does not (on appeal) challenge the Tribunal’s findings of fact as to the existence of sites of particular significance on E47/1667 or E47/1666. However, the State contends that the Tribunal erred by misconstruing and misapplying the legal test required under s 237(b) NTA. In particular, the State’s primary argument is that the Tribunal failed to carry out a ‘predictive assessment’ as required and misinterpreted the word ‘interfere’ such that there was no actual assessment of the risk of interference with areas or sites in accordance with s 237(b) NTA. Further or in the alternative, the thresholds used in the assessment were, according to the State, impermissibly low. The State argues that those are matters of statutory interpretation properly falling within an appeal under s 169(1) NTA.

66    The State relies on the Full Court decision of Little v Oriole Resources Pty Ltd (2005) 146 FCR 576 in which the Full Court adopted (at [49]) the discussion concerning the need for the Tribunal to reach a ‘predictive assessment’ as initially explained by French J (as his Honour then was) in Smith where his Honour said (at [23]):

… It was submitted that the [1998] amendment to s 237 reflected a legislative intention to require a predictive assessment of the effects of the proposed future act in accordance with the approach taken by Carr J in the Ward case, rather than that adopted by the Full Court in Dann. In my opinion that is the plain intention behind the amendments to s 237 and that intention is effected by the language that has been used. The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement. …

(emphasis added)

67    As far as the meaning of the word ‘interfere’ in s 237(b) is concerned, the State also rely on the observations by French J in Smith (at [26]) where his Honour said:

The criterion of direct interference in par (a) may be thought of more fruitfully as functional than as definitional. That is to say, it is more usefully regarded as a direction to the Tribunal about its approach to an essentially evaluative judgment than as a definition of a class of consequence which, if attaching to a future act, would take it outside the scope of the expedited procedure. This direction to the Tribunal does not require precise and semantically correct cause and effect analysis in every case. Simple causal analysis in this context would rarely yield a primary cause and effect with no other cause intervening. The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.

(emphasis added)

68    Although those observations related to s 237(a) NTA, they would equally apply to s 237(b) NTA. It is clear that the interference must be substantial and must produce an ‘impact’ of some sort in relation to the activities referred to in s 237(a) NTA.

69    The State argues that there are no authorities which suggest that the use of the word interference in relation to s 237(b) NTA is different than that in s 237(a) NTA, nor would it be expected that there would be such a difference. But it appears to me that the Full Court analysis in Parker, referred to above, illustrates that, in the context of s 237(b) NTA, that it is the interaction of the proposed activity taken at large with the particular site having regard to the nature of the site which will determine whether there is interference in the sense used in subsection (b).

70    The State particularly emphasise that a threshold of substantial, or at least non-trivial impact, is consistent with the purpose of the expedited procedure and the right to negotiate. The State contend that the right to negotiate is a right which arises in circumstances where there is a significant threat to native title rights and interests, as the application of the right to negotiate would be illogical and contrary to the objects of the NTA in circumstances where it was not required to avoid significant impacts on native title rights and interests. It would be illogical for there to be a right to negotiate if the likely impact was only trivial. It also follows that interference for the purpose of s 237(b) NTA must be with the area or site itself, not with people or activities which are the subject of s 237(a) NTA. The State argues that this would suggest that the relevant impacts or effects would ordinarily be physical, such that the onus would ordinarily be on the native title party to demonstrate how a substantial or non-trivial physical impact on an area or site will result.

71    The State complains that the Tribunal did not explicitly consider, and made no findings about, the nature of the likely impact or effect of FMG’s proposed activities on any of the areas or sites, including whether and how the significance of any of the sites would be diminished by the proposed activities. According to the State, no examples were drawn upon by the Tribunal to illustrate how the sites might be affected in even the smallest way. The State complains that the Tribunal failed to carry out a fact based risk assessment as required by the Full Court in Little, and failed to consider relevant factors mandated by the word ‘interfere’.

72    Further, or alternatively, the State contends that the Tribunal considered that trivial impacts, or impacts which did not affect the significance of areas or site, were sufficient to engage s 237(b) NTA.

73    In the event that it is found that the Tribunal did carry out a predictive assessment, the State then argues that the Tribunal failed to apply the correct standard of probability, namely, a ‘real chance or risk’ of interference. It merely found that ‘inadvertent interference may occur’.

74    Dealing with the latter point briefly, taking the conclusion reached by the Tribunal entirely in context, it appears to me that it has applied the correct standard and, more particularly, that the sense in which it used the words ‘may occur’ was entirely consistent with there being a ‘real chance or risk’ in its assessment.

75    Dealing with the more substantive point, in my view, the nature of interference referred to under s 237(a) NTA is not the same as the nature of interference referred to under s 237(b) NTA. The risks addressed in the two subsections are quite different. The range of community and social activities referred to in s 237(a) NTA is very broad, whereas s 237(b) NTA is directed only at areas or sites of ‘particular significance’. It follows that interference that may be trivial in the context of a social activity may be substantial in the context of a site of ‘particular significance’. That is why the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) NTA, may be substantial having regard to the native title party’s traditions. This, as suggested in Parker, may require an evaluation of the extent of particular significance of the site.

76    As to the contention for the State that the interference will ordinarily be physical, this is not expressly articulated in the legislation. There is no reference to physical interference and the word ‘interference’ is qualified by the expression ‘… in accordance with [the native title party’s] traditions’. It may follow that mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference.

77    The Tribunal found that Baliyinha wundu is a site of particular significance to the Yindjibarndi people (at [122]). As explained in the Determination, wundu is a water course and places of water are significant to the Yindjibarndi people. Mr Woodley explains in his affidavit that their belief is that Barrimirndi, a water serpent, created all of the water places in the Yindjibarndi country and that water places are dangerous because Barrimirndi’s spirit is in all of them. He also explained that the Baliyinha wundu contained engravings of marrga.

78    The Yindjibarndi people believe that marrga are powerful spirits that created Yindjibarndi country, still live in the Yindjibarndi country along with the spirits of old Yindjibarndi people and watch Yindjibarndi people to make sure they look after Yindjibarndi country in accordance with Birdarra law. The Yindjibarndi people believe that the marrga continue to inhabit Yindjibarndi country and that pictures of the marrga carved into rocks and painted in caves and rock shelters in Yindjibarndi country is physical proof of their existence and presence. Mr Woodley also gave evidence to explain that the Yindjibarndi people are bound together as a community by Birdarra law, which is their shared system of religious beliefs. The Yindjibarndi people believe that Minkala (the Yindjibarndi word for God) gave Birdarra law to the marrga at the time the world was being created. They believe that the most important part of this law is the kin classification system called Galharra such that every person, creature and thing in Yindjibarndi country has a kin. They also believe that the marrga commanded them to look after Yindjibarndi country in accordance with this law and that the marrga hold them to account in this respect. They believe that there are areas and sites on Yindjibarndi country that have particular significance under this law including sites where there are engravings of marrga. They believe that they gave an obligation under this law to protect these areas and sites and part of this obligation, in relation to approaching places inhabited by marrga with strangers to the country (strangers including Aboriginal people who are not Yindjibarndi and non-indigenous people), is that a Yindjibarndi person with the same kin as the place has to announce their arrival and to introduce the strangers. They believe that if Yindjibarndi people or other people break this law then Yindjibarndi people suffer sickness or death, and the country dries up. As foreshadowed above, the Yindjibarndi believe that a stranger to Yindjibarndi country would break Birdarra law merely by approaching Baliyinha wundu unaccompanied by a Yindjibarndi person with the same kin as the site who could introduce that stranger to the marrga there. Such an approach to Baliyinha wundu would thereby constitute interference with it. The interference is not a physical disturbance of the site but, rather, it is interference with the site under Birdarra law.

79    The State submitted that YAC had an onus to demonstrate how a substantial or non-trivial physical impact on the area or site will result. I have already dealt with the suggestion that the impact must be substantial or non-trivial. The meaning of these terms must be taken in the context of the particular site and the laws and customs in relation to that site. Moreover, in relation to the evidential onus before the Tribunal, no party bears an evidential onus. Rather, the Tribunal is required to adopt a ‘common sense approach’ as described by Carr J in Ward v Western Australia (1996) 69 FCR 208 (at 215-218). It is the Tribunal which carries out the inquiry and forms the conclusion pursuant to the statute. It does so on receipt, in accordance with procedural fairness principles, of submissions which the parties wish to make.

80    In my view, it is clear that the Tribunal did make the predictive assessment required by s 237(b) NTA. This is evident from the very terminology adopted throughout, but particularly in relation to [120] and [122] of the Determination which have been set out in full at the outset of these reasons.

81    To reiterate, the Tribunal accurately identified the precise questions it had to ask (at [9]). It then set out detailed summaries of the evidence and material which had been provided by the State, FMG and YAC. It took into account all relevant matters, such as the State’s regulatory regime concerning Aboriginal cultural heritage. It then set out its findings of fact on all the matters that formed the basis of its Determination.

82    I accept the submission for YAC that the Tribunal did consider what constituted interference with each site in accordance with Yindjibarndi traditions. It did so by making a finding that the interference would be inadvertent. The Tribunal explained that it made these findings having regard to the nature of the activities FMG intends to carry out, FMG’s internal policies and procedure concerning Aboriginal heritage, FMG’s attitude to Aboriginal heritage, the State’s regulatory regime and the nature of the particular sites. From these findings and the Tribunal’s detailed summary of the parties’ evidence and contentions, the Tribunal reached its predictive assessment. As I have explained in the context of the FMG appeal, my view is that the Tribunal was not required to state its findings on exactly what action would be likely to constitute interference.

Appeal ground 4

83    This also disposes of ground 4 of the State’s appeal by which it is contended that the Tribunal erred in considering the possible effect of the right to negotiate procedure under s 31(1)(b) NTA in mitigating or avoiding interference with sites of particular significance. Reference to the right to negotiate was simply a yardstick by which the likelihood of interference could be measured.

Appeal ground 5

84    The State also contends, by ground 5, that there must be sufficient evidence of a ‘real chance or risk’ of interference with the sites. It argues that there was no evidence as to where on the licence areas FMG would exercise its rights, though the Tribunal nevertheless inferred that FMG would carry out activities at or near the identified sites. The State argues that there must usually be evidence from YAC, or any other native title party, as to the risk and nature of likely impacts by reference to the nature of the sites and their significance. The State argues that in the absence of a clear and obvious risk of interference such as, for example, in the case of a proposed mine pit, the Tribunal should not assume that minor activities like merely traversing an area or rock chip sampling would affect areas such as hills and river beds. The State complains that the YAC provided no evidence as to how FMG’s proposed activities (assuming they were carried out or at or near the identified areas or sites) would result in a substantial or non-trivial physical (or any other) effect. The State complains that the YAC provided no evidence as to how the significance of the areas or sites would be diminished by FMG’s proposed activities. Such inference of interference, it argues, was not reasonably open to the Tribunal. According to the State, the Tribunal erred in law by making its findings in the absence of evidence of interference within the meaning of s 237(b) NTA.

85    I disagree with this submission. There was evidence before the Tribunal in support of its finding that there was a real risk or chance of interference with the sites of particular significance. Once there is some evidence or material on which the fact can be based, the error of law described in Kostas, that is, making findings of fact for which there is no evidence or other material, can no longer be made out: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (at 356)).

86    At the risk of repetition, but at least in summary, I accept the submissions for YAC that the Tribunal’s finding that there was a real risk or chance of interference was based on its findings that inadvertent interference may occur which, in turn, was based upon evidence and material before the Tribunal including:

(a)    FMG’s statement pursuant to s 58(1)(b) of the Mining Act 1978 (WA) in respect of its applications for E47/1666 and E47/1667 which were annexed to the affidavit of Mr Weaver;

(b)    draft conditions to be imposed on proposed licences by the State; and

(c)    Mr Woodley’s evidence which has been set out above at [22]-[25].

Appeal ground 7

87    The State contends that the Tribunal, having found there was ‘no evidence’ that a pastoral lease which entirely overlapped E47/1667 had caused any interference with the sites, was unreasonable to conclude that there was a risk that the exploration activity would pose interference. The State contends the existence of the pastoral lease was a factor of great importance in the contextual risk assessment the Tribunal was required to carry out. According to the State, the Tribunal failed to conclude that the existence of the pastoral lease without interference meant that it was highly probable that FMG’s proposed activities would not result in greater disturbance.

88    This submission is founded upon a contention of Wednesbury unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. This submission cannot be sustained.

89    In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, one of a small number of cases where a decision has been invalidated on the sole ground of unreasonableness, French CJ said (at [30]):

That the requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a Court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody’s reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence”…

90    The Tribunal’s finding of a real risk of interference in respect of E47/1667 was open to it on the evidence which has been set out at [81]. The existence of the pastoral lease was a factor the Tribunal referred to and took into account in reaching its finding. Without knowing much more about what, if any, activity took place on the pastoral lease, having regard to the remote location, it is impossible to say at this juncture that the Tribunal’s decision was not open to it. The range and nature of activities carried out on the pastoral lease could be entirely different from the range and nature of activities arising on exploration. In any event, it is clear that the Tribunal considered the material before it and reached a conclusion which was reasonable in the legal sense. The Tribunal’s finding could not be said to be unreasonable.

CONCLUSION

91    As none of the State’s grounds of appeal has been sustained, its appeal must also be dismissed.

92    The appeals are dismissed.

Associate:

Dated:    8 December 2014